Unjust Whacks At Tobaccos' Ads

May 08, 1996|By Hal Shoup.

Liggett Group Inc.'s failed takeover of RJR Nabisco offers a clear opportunity for a "time out" in the debate over federal tobacco policy. To this point, policy on this important issue has been driven by emotions more than facts. It's time to assess the real issue and find the real solutions.

Last month, in a settlement of its portion of various court actions aimed against tobacco companies, Liggett agreed to abide by several proposed anti-tobacco regulations handed down by the U.S. Food and Drug Administration. The FDA proposed these sweeping regulations at the request of the White House with the express goal of reducing teenage smoking.

These unprecedented restrictions would severely limit the ability of tobacco companies to advertise and promote their products, and would prohibit tobacco-related sponsorships of any kind. Since Liggett's tobacco products were only a tiny fraction of its overall business, and since the company did almost no tobacco advertising, Liggett agreeing to abide by these proposed regulations is roughly the same as a country music singer announcing that from this day forward he would quit playing jazz.

It is clear that Liggett's actions were intended primarily to influence its takeover bid. Still, Liggett's agreement to accept this new mountain of red tape is being heralded by some as a validation of the FDA's approach. As someone who works in the advertising industry, I can say with confidence that the FDA's strategy is wrong-headed.

Of course, the regulations are politically popular--bashing the tobacco industry is an easy applause line. Indeed, the cause of the FDA is just--all of us want to stop teen smoking. In this case, however, the ends do not justify the means. The proposed regulations represent a dramatic governmental intrusion on the 1st Amendment right to commercial free speech. Moreover, they will not achieve the results we all seek.

Because the advertising of legal products is protected by the free speech clause in the 1st Amendment, the U.S. Supreme Court has consistently ruled that this right can be infringed only very narrowly and for a very specific purpose. The FDA's rules are anything but narrow. For example, one of the FDA's rules would permit only "tombstone" advertising (black-and-white text, no pictures, no graphics) in nearly all print advertising. These new mandates would also ban all point-of-purchase advertising and would effectively ban all billboard advertising in heavily-populated areas. These restrictions do not just affect teenagers; they impact all consumers.

In addition, there is little evidence to suggest that advertising plays a major role in the decision of teenagers to start smoking. Advertising certainly influences brand preference among people who already smoke, but none of the dozens of studies conducted recently on this topic point to a causal relationship between advertising and teen smoking. In fact, in countries like Finland, Sweden, Norway, Iceland, Italy, Singapore, Australia and the former Soviet Union, the incidence of teen smoking actually increased when cigarette advertising was restricted or banned.

There is, of course, a larger question here. Is it appropriate for the federal government to dictate the sales and marketing techniques for an entire industry? With these new regulations, Washington bureaucrats will essentially be micro-managing a private industry. Moreover, the government is now regulating the kind of information that American consumers can receive. Now the government is furthering its list of dictates: government bureaucrats now can tell private companies how and where they can advertise.

Tobacco will not be the issue next month or next year, however. FDA regulations have not even been approved, and already there are calls for similar regulations for the alcohol beverage industry. Gaming, too, will come under fire as the mandate machine rolls on from one industry to the next.

A huge morass of new regulations (and the hundreds of millions of dollars necessary to enforce them) is not necessary in order to curb teenage smoking. It would be far more effective to use resources on new tobacco education programs and to beef up enforcement of existing laws against tobacco sales to minors. These common-sense solutions will have a real effect on our teens, and they do not require ceding new powers to the federal government or infringing on constitutionally-protected liberties.

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Hal Shoup is the executive vice president of the American Association of Advertising Agencies.